November 7, 2006
Lovely Rita, SCOTUS case...
The Supreme Court's decision to grant cert in Rita to consider reasonableness review for within-guideline sentences will sure lead to a lot of riffs on one of my favorite songs by The Beatles. And I am now pleased to report that, thanks to the fine folks running the Middle District of North Carolina Federal Public Defender website, the cert petition in Rita, the Government's cursory 3-page response, and Rita's reply brief are all available at this link.
The cert petition and other papers in Rita, just like the papers in Claiborne (provided here), should make fans of rigid guidelines quite concerned about the cases that SCOTUS selected for cert. The underlying crime is Rita involves only mis-statements to a grand jury investigating the sale of machine-gun kits, and the defendant, Victor Rita, apparently still maintains his innocence. Perhaps even more importantly, Victor Rita, according to the cert. petition, served 24 years in the Marine Corps, had tours of duty in Vietnam and the first Gulf war, and has received over 35 military metals and awards! Also, Victor Rita is 57 years old and suffers serious health problems. Talk about a sympathetic defendant.
As noted here, today the Supreme Court this morning will hear arguments in Burton v. Waddington, the case addressing Blakely retroactivity. Kent Scheidegger here at Crime & Consequences points to this Criminal Justice Legal Foundation press release explaining why he is hoping for a decision that will "prevent the retroactive application of Blakely."
Because I am a big fan of Blakely, I believe justice is served by not completely shutting out defendants from Blakely claims just because it took the Supreme Court a long time to finally and fully develop Apprendi/Blakely principles. That said, I would be quite concerned about the impact of Blakely retroactivity if the Supreme Court last term in Recuenco had indicated that Blakely errors required automatic reversals. But since Blakely errors can (and surely often will) be subject to harmless error analysis, I am rooting for the Supreme Court to give Blakely some retroactive application. But I am not betting on it.
Some related posts on Blakely retroactivity:
A sentencing view of election day
The polls just opened today in Ohio, and I will mark the moment by encouraging everyone to go vote. In addition, I see that Capital Defense Weekly has this effective review of how certain candidates with notable death penalty records might fare today. Also, below I have assembled some of my recent Election 2006 sentencing commentary:
- Sentencing-related initiatives this election season
- How could and will this election impact federal sentencing policy?
- Crime, sentencing and politics
- A new world of death penalty politics?
- More on the modern politics of the death penalty
- The politics of judges and judging
- The law and policy of felon disenfranchisement
The blogosphere on shame and banishment
The blogosphere can often adding interesting insights to debates over alternatives to incarceration, and here are some recent examples:
- Corrections Sentencing, which always has so much good reading, has this great post entitled "How Not to Shame." The post discusses a recent case in which a defendant was ordered to wear a t-shirt saying "I am a registered sex offender," and astutely argues "that we need more than a simple 'it's good/it's bad' debate over shaming."
- Meanwhile, this post at Marginal Revolution and this follow-up at The Volokh Conspiracy have some interesting thoughts (and interesting comments by readers) about banishment as a punishment.
UPDATE: Corey Yung at the blog Sex Crimes has this thoughtful extended entry on banishment punishments in the US.
November 6, 2006
Super (sentencing) Tuesday
Even though even this blog has been overtaken by election fever (see posts here and here and here), the real excitement on Tuesday for sentencing fans is in the Supreme Court. Fortunately, SCOTUSblog has posts to keep everyone up on the sentencing excitement at the High Court tomorrow.
This post discusses the issues in James v. United States (No. 05-9264), which asks "whether the Eleventh Circuit erred in ruling that a prior conviction for attempted burglary under Florida law qualifies as a 'violent felony' under the federal Armed Career Criminal Act." This post discusses the issues in Burton v. Waddington (05-9222), which "considers whether to make retroactive, to earlier cases, its 2004 decision in Blakely v. Washington." In his post on Burton, Lyle Denniston astutely notes that "a good deal of the argument Tuesday may focus on just how vital the reasonable doubt standard is to guaranteeing fair criminal trials."
I am very much looking forward to having same-day transcripts from James and Burton to keep me occupied while we await firm election results Tuesday night.
The district court sentencing in Claiborne and cert briefing
A terrific reader sent me an electronic copy of the district court sentencing transcript in Claiborne, the case in which the Supreme Court will examine whether a below-guideline sentence is reasonable (basics here and here and here). I have provided that transcript for downloading below, and it is a fascinating read.
As the transcript details, Mario Claiborne was given a 15-month sentence for two relatively minor crack offenses. Especially because it appears that Claiborne was a non-violent first offender, one can readily assert that his sentence is clearly reasonable for his offenses. And yet, in part because of how harshly the guidelines treat crack quantities, Claiborne's guideline range was 37-46 months' imprisonment. Especially because there does not appear to be anything special about Claiborne, one could also readily assert (as did the Eighth Circuit) that nothing extraordinary about this case clearly justified a sizable deviation from the guideline range.
In the transcript, Claiborne's attorney indicates that his guideline range would have been only 6-12 months' imprisonment if his offense had involved powder cocaine. So Claiborne was still given a sentence harsher than what the guidelines would have advised for a powder offense, but less harsh than what the guidelines advised for a crack offense.
I am still trying to get my hands on a copy of the the district court sentencing transcript in Rita, the case in which the Supreme Court will examine the reasonableness of a within-guideline sentence. In addition, I am also still seeking electronic copies of the cert petitions in both cases.
UPDATE: Another helpful reader has sent along the cert briefing in Claiborne, which I set forth below:
More on the modern politics of the death penalty
I noted here the usual death penalty dynamics in the Maryland Senate race, in which a Republican candidate criticizing the Democratic candidate for not being against the death penalty. There is, of course, a lot more to be said about the current national pulse on the death penalty, and Ward Campbell, a state prosecutor in California, has allowed me to post his recent e-mail to me on the topic:
The South Dakota poll supporting the death penalty is of a piece with what is going on in Wisconsin -- a state that has not had a death penalty since the middle of the 19th century. Tomorrow, Wisconsin voters will actually vote on a non-binding, advisory referendum concerning imposing the death penalty if the defendant is convicted of first degree murder on the basis of DNA evidence.
It is significant that Wisconsin is voting on this issue at all. What is even more remarkable is that polls show the referendum passing easily. On a similar note, New Hampshire (which has a Death Penalty law, but no one on Death Row) is now gearing up for its first death penalty prosecution in about 70 years.
These events are worth noting because of the recent efforts of death penalty opponents. The focus on the number of alleged exonerations of Death Row inmates, for instance, has not provoked a movement to abolish the death penalty. Rather, Wisconsin's referendum shows that the reaction will be to simply heighten the standards by which guilt and eligibility are assessed in imposing the death penalty.
The politics of judges and judging
It is hard not to be in an political mood today, and How Appealing feeds this hunger with links to two interesting pieces noting the relationship between judges and politics in this election cycle. First, at the National Review Online, Byron York has this thought-provoking essay wondering, "Senate 2006: Why Hasn't the GOP Made Judges an Issue?". Second, over at The Pocket Part of the Yale Law Journal, one can now find this intriguing essay by Jaynie Randall entitled "Federal Judicial Supremacy on the Ballot."
How could and will this election impact federal sentencing policy?
I have previously blogged here and here on some state sentencing issues that have arisen, and some state sentencing proposals that are on the ballot, this election season. Now my thoughts are turning to how the mid-term election might impact federal sentencing policy.
The current betting line predicts that Democrats are likely to be taking over the House, but suggests the Senate is likely to stay (barely) in the hands of Republicans. Whatever the exact outcome, I think any shifts in federal sentencing policy will be subtle, but still consequential. Here's my rough take.
I think the prospect of a "topless" guidelines Booker fix is diminished if Democrats gain control of either or both houses of Congress. Also, I hope (but I am not confident) that there will be less emphasis on statutory mandatory minimums if Democrats are in power. Yet, because many Democrats still embrace the Clintonian strategy of being "tough on crime," I doubt we will see any truly major shift in federal crime policy even if Democrats win both houses of Congress. Ultimately, what may matter most are the concerns and priorities of those persons who take over key leadership positions on judiciary committees.
UPDATE: Reflecting on these matters over my morning coffee led me to perhaps the two biggest federal sentencing questions that could follow the Democrats gaining more power in Congress:
- Would the chance of a fix to the 100:1 crack/powder ratio improve?
- Would federal judges and the US Sentencing Commission feel a bit freer to embrace Booker discretion based on the belief that Congress would be less likely to respond negatively to less harsh and rigid sentencing rules?
November 5, 2006
Recapping reasonableness review rush
Friday afternoon brought the exciting news that the Supreme Court has finally decided to take up Booker reasonableness issues through cert grants in Claiborne and Rita. Here is a recap of the Friday rush of posts (many with valuable comments) that this news produced:
- SCOTUS to take up Booker reasonableness!!
- SCOTUS Booker questions presented ... and more questions
- How many amici briefs will there be in Claiborne and Rita?
- How do Cunningham and Claiborne and Rita intersect?
- The facts and decisions in Claiborne and Rita
I still have not yet seen the cert petitions in these case or the transcripts of the sentencings in the district courts. I'll be grateful to anyone sending these materials my way, and I'll be sure to post anything significant I receive electronically.
Might as well claim it, you're addicted to...
I could not resist a riff on Robert Palmer after reading this interesting article from the Houston Chronicle about white-collar offenders seeking counseling in prison to reduce their sentence. Here are some snippets:
When former Enron executive Andrew Fastow was sentenced to six years in federal prison this fall, he asked for drug treatment, citing dependency on anti-anxiety medication that helped him cope with the implosion of his company, the imprisonment of his wife and his prosecution. If the Bureau of Prisons grants his request, Fastow could reduce his time behind bars by up to one year....
Fastow and other Enron executives are joining a growing trend of white-collar criminals trying to reduce their sentences by entering prison-based drug or alcohol rehabilitation — an option not open to violent offenders who go through the same treatment. Critics question whether Fastow and other white-collar criminals really need drug treatment or whether they are simply trying to game the system. Critics also complain that corporate criminals are taking up precious slots in prison rehab that could be better used to treat convicts with severe addictions that played a major role in their crimes.
Sunday morning death penalty headlines
As is true many Sunday mornings, today there are a number of interesting stories from around the country on death penalty topics. Here are headlines and links:
- From Florida here, "Legal challenges delayed but failed to halt executions"
- From New Hampshire here, "Death penalty an issue for Senate hopefuls"
- From South Carolina here, "Death row not as fast for some"
- From South Dakota here, "61 percent in S.D. back death penalty"